Parliamentary Sovereignty Flashcards
Which founding pieces of legislation showed P’s sovereignty after the Glorious Revolution 1688
Bill of Rights 1689 and Act of Settlement 1701
3 main principles of P sovereignty (Dicey)
- P is supreme law making body (they have political limits but there are no legal limitations on Acts they can make)
- No P may be bound by predecessor or may bind a successor (absence of Entrenchment)
- No person or body may question validity of an Act of P
P is supreme law making body (they have political limits but there are no legal limitations on Acts they can make)
CASE: R v SOS for home dept ex parte simms
Lord Hoffman said in obiter P can legislate contrary to fundamental principle of human rights
P is supreme law making body (they have political limits but there are no legal limitations on Acts they can make)
CASE: Cheney v Conn
- P can legislate against public international law
- finance act being questioned to go against geneva convention (treaty) P said its not for them to decide if its legal and Parliament creates highest form of law for UK
P is supreme law making body (they have political limits but there are no legal limitations on Acts they can make)
CASE: mortensen v Peters
No geographical limitations (re fishing in UK waters)
P is supreme law making body (they have political limits but there are no legal limitations on Acts they can make)
PRINCIPLE: Can pass retrospective and prospective laws
War Damage Act 1965 retrospectively applied- nullifying HoL decision of Burmah Oil Co v Lord Advocate
No P may be bound by predecessor or may bind a successor (absence of Entrenchment)
Express repeal of an Act
new Act states earlier act should be replaced eg. Interception of communications Act replaced Regulation of Investigatory Powers Act
No P may be bound by predecessor or may bind a successor (absence of Entrenchment)
Implied repeal of an Act
If a new Act partially or wholly inconsistent with a previous Act (comes from presumption P would not intend two incompatible statutes to be given effect at same time) courts will only give effect to this if 2 statutes irreconcilable
Vauxhall & Ellen Street Estates
Effect of implied repeal is P cannot bind its successors
- both cases concerned Housing Act 1925 and Acquisition Act 1919 which stated its provisions were to prevail over any other statutes but it was decided by courts P cannot bind successors
Enrolled Bill Rule
Pickin v British Railways Board
Lord Morris said when enactment passed there is finality unless amended or repealed by P
Procedural limitations on Parliament passing Acts- Trethowen
- Legislation was passed and prohibited abolition of the upper chamber of NSW legislature without referendum approval
- Following year legislature passed two Bills designed to abolish upper chamber without referendum
- Privy council granted injunction preventing royal assent because they had not been passed in correct manner, they held the requirement for a referendum was binding
- Critics argue NSW legislation was created by UK parliament and was subordinate to it (it was not a sovereign legislature)
- UK parliament created NSW legislature (ability to create laws) anyway so P are not bound by this subordinate legislature so they could introduce new bills
Obiter dicta in discussion on if P can bind itself
Jackson v AG- Lady Hale
sovereign P can redefine itself downwards or remove requirement for consent by upper house, it may very well be that it can also redefine itself upwards, to require a particular parliamentary majority or popular referendum for particular types of measure. In each case the courts would be respecting the will of the sovereign P as constituted when that will had been expressed
Ex parte Simms
- P able to enact laws which undermine fundamental human rights if it expressly states in clear terms, otherwise there will be a strong presumption P did not intend this
Jackson
- significant that an argument against Act of P being valid went all the way to HoL & pull judicial panel)
- Hunting Act 2004 argues invalid as created under Parliament Act 1949 which is also invalid
- Said Act was valid and act of was created within was valid but in obiter:
- Our constitution is dominated by P sovereignty but P sovereignty is no longer, if it ever was, absolute. It is no longer right to say it’s freedom to legislate admits of no qualification whatever
ouster-clauses
- created to try and prevent statutory powers being reviews in court
- Anisminic case the Act states it shall not be questioned in any court of law
- Law lords held ouster clause did not prevent Anisminic from challenging FCCs decision
